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440 
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Class!:. 440 

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SPEECH 

OK 

HON. J. P. BENJAMIN, 

OF LOXJISIAlSrA, 

• ON 

THE RIGHT OF SECESSION. 



DELIVERED IN THE SENATE OF THE TTNITED STATES, DEO. 31, 1860. 



The Senate, as in Committee of the Whole, resumed the consideration of the joint 
resolution introduced by Mr. Johnson, of Tennessee, proposing amendments to the 
Constitution of the United States— Mr. BENJAMIN said: 

Mr. President: AVhen I took the floor at our last adjournment, I stated that I ex- 
pected to address the Senate to-day in reference to the critical issue now before the 
country. I had supposed that by this time there would have been some official 
communication to the Senate, in reference to the fact now known to all, of the con- 
dition of afiairs in South Carolina. I will assume, for the purposes of t,he remarks 
that 1 have to make, that those facts have been officially communicated, and address 
mj'self to them. And, JMr. President, probably never has a deliberative assembly 
been called upon to determine questions calculated to awaken a more solemn sense 
of responsibility than those that now address themselves to our consideration. We 
are brought at last, sir, directlj' forced, to meet promptly an issue produced by au 
irresistible course of events whose inevitable results some of us, at least, have fore- 
seen for years. Nor, sir, have we failed in our duty of warning the Republicans that 
they were fast driving us to a point where the very instincts of self-preserva- 
tion would impose upon us the necessity of separation. We repeated those warn- 
ings with a depth of conviction, with an earnestness of assertion that inspired the 
hope that we should succeed in imparting at least some faint assurance of our sin- 
cerity to those b}' whose aid alone could the crisis be averted. But, sir, our asser- 
tions were derided ; our predictions were scoffed at; all our honest and patriotic 
efforts to save the Constitution and the Union sneered at and maligned, as dictated, 
not by love of country, but by base ambition for place and power. 

Mr. President, it has been justlj' said that this is no time for crimination ; and, sir, 
it is in no such spirit, but with the simple desire to free myself personally, as ai)ublic ser- 
vant, from all responsibility for the present condition of affairs, that I desire to recall 
to the Senate some remarks made bv me in debate more than four years ago, in which 
I predicted the precise state of public feeling now existing, and pointed out the two 
principal causes that were certain to produce that state. The first was the incessant 
attack of the Republicans, not simply on the interests, but on the feelings and sensi- 
bilities of a high- spirited people by the most insulting language, and the most offensive 
epithets; the other was their fatal success in persuading their followers that these 
constant aggressions could be continued and kept up with no danger; that tlie South 
was too weak and too conscious of weakness to dare resistance. Sir, on the 2d of 
May, 1856, after reviewing this subject at some length, I said: 

'■ ','Now, Mr. President, when we see these two interests contrasted — the North struggling for the 
poSSfcision of a power to which she h.is no legitimate claim under the Constitution, for the s-oje pur- 
pose of aV^using that power — the South struggling for property, honor, safety — all that is dear to 
man — tell me If the history of the world exliibils an exanipleof a people occupying a more enno- 
bling attitude than the people of the South'? To vituperation they oppose calm'reason. To men- 
aces and threats of violence, and insulting assumptions of superiority, they disdain reply. To di- 
rect attacks on their rights or their honor, they appeal to the guarantees of the Constitution ; and 



<A 



■when those guarantees shall fail, and not till then, will the Injured, outraged South throw her sword 
into the scale of her riirhts, and appeal to the God of battles to do her justice. I say her sword, 
bueause I am not one of those wlio believe in the possibility of a peaceful disruption of the Union. 
It cannot come until all possilile means of conciliation have been exliaustod; it cannot come until 
every ansry i);ission shall have been roused; it cannot come until brotherly feeling shall have been 
converted into deadly hate ; and then, sir, with feelings embittered by tbe consciousness of injustice, 
or passions hi'^Ii-wrought and inflamed, dreadful will be the internecine war that must ensue. 

"Mr. Presicfeiit, among what I consider to be the most prominent dangers that now exist, iathe 
fact that t!ie leaders of the Kepublican party at the North have succeeded in persuading the masses 
of the North th;it tliere is no danger. They have finally so wrouglit upon the opinion of their own 
people at home by the constant iteration of the same false statements and the same false principles, 
that the peojile fii" the North cannot be made to believe that the South is in earnest, nolwitlistauding 
its calm and resulute determination which produces the quiet so ominous of evil if ever tlie clouds 
shall l)urst. Tiie people of the North are taught to laugh at the.danger of dissolution. One iionor- 
ab'le Senator js reported to have said, with exquisite amenity, that the South could not be kicked 
out of the Union. The honorable Senator from New York says: 

" ' The slaveholders, in spite of all their threats, are bound to it by the same bonds, and they are 
bound to it also by a bond peculiarly their own — tJutt of dependence on it forWieir men safety. 
Three million slaves are a hostile force constantly in their I'jrexetice, in their very midst. The 
servile war is always the most fearfulform of war. The worldicithoutsympathizeswiththeservile 
enmny. Against that war tlie American Union is the only defence of the slaveholders — their o^ily 
prcrtection. If ever they shall, in a season of madness, recede from that Union, and provoke that 
war, they will— soon come back again.' 

"The honorable Senator from Massachusetts [Mr. Wilson] indulges in the repetition of a figure 
of rhetoric that seems peculiarly to please his ear and tickle his fancy. He rei)resents the southern 
mother as clasping her infant with convulsive and closer embrace, because the black avenger, with 
uplifted da:gger, would be at the door, and he tells us that is a bond of Union which we dare not 
violate." 

jSIr. President, no man can deny that the -words uttered four j-ears and a half ago 
form a faithful picture of the state of things that we see around us now. Would 
to God, sir, that I could believe that the apprehe^ions of civil war, then plainly 
expressed, were but the vain iiuaginations of a timorous spirit. Alas, sir, the feelings 
and sentiments expressed since the coratuencement of this session, on the opposite 
side of tliis floor, almost force the belief that a civil war is their desire; and that 
the day is full near when American citizens are to meet each other in hostile array ; 
and when the hands of brothers will be reddened with the blood of brothers. 

Mr. President, the State of South Carolina, with a unanimity scarcely with par- 
allel in histoiy, has dissolved the union which connects her with the other States of 
the confederacy, and declared herself independent. Y^'e, the representatives of those 
remaining States, stand here to-day, bound either to recognize that independence, or 
to overthrow it; either to permit her peaceful secession from the confederacy, or to 
put her down by force of arms. Tliat is the issue. That is the sole issue. No artifice 
can conceal it. No attempts by men to disguise it from their own consciences, and 
f"ora an excited or alarmed public, can suffice to conceal it. Those attempts are 
equally futile and disingenuous. As for the attempted distmction between coei'cing 
a State, and forcing all the people of the State, by arms, to yield obedience to an au- 
thority repudiatedby the sovereign will of the State, expressed in its most authentic 
form, it is as unsound in principle as it is impossible of practical application. Upon 
that point, however, I shall have something to say a little further on. 

If we elevate ourselves, Mr. President, to the height from which we are bound to 
look in order to embrace all the vast consequence that must result from our decision, 
we are not permitted to ignore the fact that our determination does not involve the 
State of South Carolina alone. Next week, Mississippi, Alabama, and Florida, will 
have declared themselves independent; the week after, Georgia; and a little later, 
Louisiana ; soon, very soon, to be followed by Texas and Arkansas, I confine myself 
purposely to these eight States, because I wish to speak only of those whose action 
we know with positive certainty, and which no man can for a moment pretend to 
controvert. I designedly exclude others, about whose action I feel equally confident, 
although others may raise a cavil. 

Now, sir, shall we recognize the fact that South Carolina has become an indepen- 
dent State, or shall we wage war against her? And first as to her right. I do not 
agree with those who think it idle to discuss that right. In a great crisis like ihis, 
w'hen the right asserted by a sovereign State is questioned, a decent respect for the 
opinions of mankind at least requires that those who maintain that right, and mean 
to act upon it, should state the reasons upon which they maintain it. If, in the dis- 
cussion of this question, I shall refer to fatuiliar principles, it is not that I deem it 
at all necessary to call the attention of members here to them; but because tliey 
naturally fall within the scope of my argument, which might otherwise prove unin- 
telligible. . . , 

From the time that this people declared its independence of Great Britain, the 
right of the people to self-government in its fullest and broadest extent has been a 



cardinal principle of American liberty. None deny it. And in that right, to use 
the language of the Declaration itself, is included the right whenever a form of 
government becomes destructive of their interests or their safety, "to alter or to 
abolish it, and to institute a new government, laying its foundation on ?uch principles | 
and organizing its powers in such form as to them shall seem most likely to effect 
their safety and happiness." I admit that tliere is a principle that modirtes this power, 
to wliich i sliall presently advert; but leaving tliat principle for a moment out of 1 
view, I say there is no other modification which, consistently with our liberty, we 
can admit, and that the right of the people of'one generation, |n convention duly 
assembled, to alter the institutions bequeathed by their fathers is inherent, inalien- 
able, not susceptible of restriction; that by the same power under which one Legis- 
lature can repeal the act of a former Legislature, so can one convention of the people 
duly assembled, repeal the acts of a forfner convention of the people duly assembled ; 
and-t.hat it is in strict and logical deduction from this fundamental principle of 
American liberty, that South Carolina lias adopted the form in which she has declared 
her independence She has in convention duly assembled in I860, repealed an ordi- 
nance passed by her people in convention duly assembled in 1*788. If no interests 
of third parties were concerned, if no question of compact intervened, all must ad- 
mit the inherent power — the same iidierent power which authorizes a Legislature 
to repeal a law, subject to the same modifying principle, that where the rights of 
cthei-y t.imu the people who passed tlie law are concerned, those I'ights must be re- 
spected and cannot be infringed by those who descend from the first Legislature or 
who succeed them. If a law be passed by a Legislature impairing a contract, that, 
law is void, not because the Legislature under ordinary circumstances would not 
have the power to repeal a law^of its predecessor, but because by repealing a law 
of its predecessor involving a contract, it exercises rights in which third persons are 
interested, and over which they are entitled to have an equal control. So in the 
case of a convention of the people assuming to act in repeal of an ordinance whicli 
showed their adherence to the Constitution of the United States, the power is inhe- 
rently in them, subject only to this modification: that they are bound to exercise it 
with due regard to the obligations imposed upon them by the compact with others, 
Authorities, on points like this, are perfectly idle; but I fear that I may not have 
expressed the ideas which I entertain so well as I find them expressed by Mr. Y/ebster 
in his celebrated argument in the Rhode Island case. He says : 

" First and chief, no man raalces a question that the people are the source of all political power. 
Government is instituted for their good, .and its meml)er8 are their agonls and servants. He vho 
■would argue ascainst this, must argue witliout an advt'rsary. And who thinks there is any peculiar 
merit in asserting a doctrine like this, in the midst of twenty million people, wlien nineteen million 
nine hundred aud ninety-nine thousand nine hundred and" ninety-nine of them hold it, as well as 
himself? There is no other doctrine of government here; and no man imput s to another, and no 
man should chiira for himself, any particular merit for asserting what everybody IvROws to be true, 
and nobody denies.''— Wo/'^s of Daniel Webster, vol. 6, p. 221. 

But he says in this particular case an attempt is made to establish the validity of 
the action of the people, organized in convention, without their having been called 
into convention by the exercise of any constituted authority of the State; and 
against the exercise of such a right of the people as that he protests. He says : 

" Is it not obvious enough that men cannot get together, and count themselves, and say (hey are 
so many hundreds and so many thousands, and judge of th, ir own qualifications, and call themselves 
the ))eople, and set up a government? Wliy, another set of men forty miles off, on the same dav, 
with the same propriety, with as good qualifications, and in as large numbers, may meet an<l set up 
another goveriunent ; one may meet at Newport and another at Chcpaehet, and both may call them- 
selves the people." — Ibid., p. 226. 

Therefore, he says -it is not a mere assemblage of the people, gathered together 
ma sponfe, that forms tiiat meeting of the people authorized to act in behalf of the 
people ; but he says that — 

"Another American principle growing out of this, and just as important and well settled as is 
the trutli that the people are the source of power, is, that when in the course of events it becomes 
necessary to ascertain the will of tlie people on anew exigency, or a new state of fhiiiLTsor of opinion, 
the legislative power provides for that ascertainment l)y an "ordinarv act of legislation." 

"All that is necessary here is, that the will of tlic people &hould"be ascertained by sonu^ regular 
nJVe of proceeding prescribed by previous law. But when ascertain tl, that will is as ,s(,vereign as 
ttie win of a despotic prince, of the Czar of Muscovy, or the Emperor of Austria himself, though 
not quite so easily made kuown. A ukase or an edict signifies at once the will of a (le*|)otic prince : 
hilt ttiat will of the people, which is hcpawis sovereign as the will of such a prince, is not so (juickly 
aseertaine.l or known; and hence arises the necessitv for suffrage, which is the mode whereby each 
man s power is made to tell upon the Constitution of the Goveruuient, aud in the enactm nt of laws." 



West. L^s. Ei&t- 600. 



He concludes — 

" We see, therefore, from the commencement of the Government under which we lire, do-ma to 
this late act of the State of New York " — 

To -wliich he had jiiet referred — 

" one uniform current of law, of precedent, and of practice, all going to estal-lish the point that 
changes in government are to be brought about by the will of the peojile, assembled under such 
legislative provisions as may be necessary to ascertain that will truly and authenticallv.'' — Ibid., 
pp. 227, li2y. 

We have theii, sir, in the case of South Carolina, so far aa the duly organized 
convention is coccerned, the only body that could ppeak the will of this generation 
in repeal of the ordinance passed by their fathers in 1788; and I say again, if no 
third interests intervened by a compact binding upon their faith, their power to do 
so is inheient and complete. But, sir, there is a compact, and no man pretends 
that the generation of to-day is not bouid by the compacts of the fathers; but, to 
tise the language of Mr. "Webster, a bargain broken on one side is a bargain broken 
on all ; and the compact is binding upon the generation of to-day only if the other 
ties to the compact have kept their faith. 

This is no new theory, nor is practice upon it without precedent. I saj- that it 
"was precisely upon this principle that this Constitution was formed. 1 say that 
the old Articles of Confederacy provided in express terms that they eh« uld be 
perpetual; that they should never be amended or altered without the consent of all 
the States. I say that the delegates of States unwilling that that Confederation 
should be altered or amended, appealed to that provision in the convention which 
formed the Constitution, and said: "If you do not satisfy us by the new provisions, 
we will prevent your forming your new government, because your faith is plighted, 
because you have agreed that there shall be no change in it unless with the consent 
of alL" This was the argument of Luther Martin, as was the argument of Pater- 
son, of Xew Jersey, and of large numbers of other distinguished members of the 
convention. Mr, Madison answered it. Mr. Madison said, in reply to that: 

"It has been alleged that the Confederation having been formed by unanimous consent, could 
be dissolved by unanimous consent only. Does this doctrine result from the nature of compacts? 
Does it arise from any jiartieular stipulation in the Articles of Confederation V If we consider the 
Federal Union as analogous to the fundamental compact by which individuals compose one socie- 
ty, and which must, in its theoretic origin at least, have been the unanimous act of tl:e component 
members, it cannot be said that no dissolution of the compact can be effected without unanimous 
consent. A breach of the fundamental principles of the compact, by a part of the society, would 
certainly absolve the other part from their obligations to it." ***** 

" If we consider the Federal Union as analogous, not to the social compacts among individual 
men, but to the conventions among individuaT Slates, what is the doctrine resulting from these 
conventions V Clearly, according t"b the expositors of the law of nations, thai a breach of any one 
ra-ticle, by any one party, leaves all the other parties at liberty to consider the whole convention as 
dissolved', unless they choose rather lo compel the delinquent party to repair theiireaeh. In some 
treaties, indeed, it is expressly stii'Ulated that a violation of particular articles shall not have this 
consequence, and even that particular articles shall remain in force during war, which is, in gene- 
ral, understood lo dissolve all subsisting treaties. But are there any exceptions of this sort to the 
Articles of Confederatiwn? So far from it, that there is not even an express slipidalion that force 
shall be used to compel an offending member of the Union to discharge its duty.'' — Madisan Pa- 
pers of Debates in the Federal Conventian, vol. 5, pp. 206, 207. 

I need scarcely ask, Mr. President, if anybody has found in the Constitution of 
the United States any article providing, by express stipulation, that force shall be 
used to compel an olfending member of the Union to discharge its dut}'. 

Acting ou that principle, nine States of the Confederation, seceded from the Con- 
federation, and formed a new Government. They formed it upon the express 
ground that some of the States had violated their compact. Immediately after, two 
other States seceded and joined them. Thcij- left two alone, Rhode Island and North 
Carolina; and here is my answer to the Senator from Wisconsin, (Mr. Doolittle,) 
who asked me the other day, if tlnrty-three States could expel one, inasmuch 
as one had the right to leave thirty-three ; I point him to tlie history of our 
country, to the acts of the fathers, as a full answer upon that subject. After this 
Government had been organized ; after every department had been in full opera- 
tion for some time ; after j'ou had framed your navigation laws, and provided what 
should be considered as ships and vessels of the United States, North Carolina and 
Rhode Island were still foreign nations, and so treated by you, so treated by .you 
in your laws; and in September, 1780, Congress passed an act authorizing the citi- 
zens of the States of North Carolina and Rhode Island to enjoy all the benefits at- 
tached to owners of ships and vessels of the United States up to the 1st of the fol- 
owing January — gave them that much more time to come into the new Union, if 



they tliougbt proper ; if not, tbey were to remaiu as foreign nations. Here is the 
history of the formation of this Constitution, so far as it involves the power of the 
States to secede from a Confederation, and to form new confederacies to suit them- 
selves. 

Now, Mr. President, there is a difficulty in this matter, which was not overlooked 
by the fnimers of the Constitution. One State may allege that the compact has 
been broken, and others may deny it; who is to judge? When pecuniary interests 
are involved, so that a case can be brought up before courts of justice, the Consti- 
tution has provided a remedy witliin itself. It has declared that. no act of a State, 
either ill eo'nvention or by Legislature, or in any other manner, shall violate the 
Constitution of the United States, and it has proVided for a supreme judiciary to 
determine cases arising in law or equity which may involve the coustructiou of the 
Constitution or the construction of such laws. 

But, sir, suppose infringements on the Constitution in political matters,^ which 
from their very nature cannot be brought before the court? That was a difficulty 
not unforeseen; it was debated upon propositions that were niade to meet it. At- 
tempts were made to give pov/er to this Federal Government in all its departments, 
one after the other, to meet that precise case, and the convention sternly refused to 
admit any. 

It was proposed to enable the Federal Government, through the action of Con- 
gress, to u=e foi'ce. That was refused. 

It was proi>osed to give to the President of the United States the nomination of 
State Governors, and to give them a veto on State laws, so as to preserve the su- 
premacy of the Federal Government. That was refused. 

It was proposed to make the Senate the judge of difficulties that might arise be- 
tween States and tiie General Government. That was refused. 

It was tinallj' proposed to give Congress a negative on State legislation inter- 
fering with the powers of the Federal Government. That was refused. 

Atlast, at the very last moment, it was proposed to give that power to Congress 
by a vote of two-thirds of each branch ; and thot, too, was denied. 

Now, sir, I wisli to show, with some little deta.il — as briefly as I possibl}- can and 
do justice to the subject — what was said by the leading members of the convention 
on these propositions to subject the States, in their political action, to any power of 
the General Government, whether of Congress, of the judiciary, or of the Executive 
— and by any majorities whatever. The first proposition was made by Mr. Ran- 
dolph, on the 29th of May, 1787; and it was, that power should be given to Con- 
gress — 

" To negative all laws passed by the several States contravening, in the opinion of the National 
Legislature, the articles of Union, or any treaty subsisting underlhe authority of the ITuion; and 
to call forth the force of the Union agaiust any member of the Union failing to fulfill its duty under 
the articles thereof." 

To negative all laws violative of the articles of Union, and to employ force to con- 
strain a State to perform its duty. Mr. Pinckney's proposition on the same day 
-was: 

" And to render those prohibitions effectual, the Legislature of the United States shall have the 
power to revise the Inws of the several States that may be supposed to infringe t!ie powers exclu- 
sively delegated by this Constitution to Congress, and to negative and annul such as do." 

The proposition giving a power to negative the laws of the States, passed at first 
hurriedly, without consideration; but upon further examination, full justice was 
done to it. Upon the subject of force, Mrt Madison said, moving to postpone the 
proposition to authorize force : 

"Mr. Madison observed, that the more he reflected on the use of force, the more he doubted the 
practicability, th^ justice, and the efficacy of it, when ai plied to people collectively, and not indi- 
vidually. A uuiou of tlie States containing such an ingredient, seemed to provide for its own de- 
struction. Tlie use of force against a Stale would look more like a declaration of war than an in- 
fliction of pnuishment, and would probably be ci>nsidered by the party attacked as a dissolution of 
all previous compacts i>y which it might be bound. He hoped that such a system would be framed 
as alight render this resource unnecessary, and moved that the clause be postponed." — Madison 
Papers— JJehateii in the Federal Contention, vol. 5, p. 140. 

Mr. Mason, the ancestor of our own distinguished colleague from Virginia, said: 

"The most jarring elements of nature, fire and water, themselves, are not more incompatible 
than such a mixture of civil liberty and military execution. Will the militia marcli from one State 
into another in order to collect the arrears of taxes from the delinquent members of the Jiepublic V 
Will they maintain ;iu army for this purpose V Will not the citizens of the invadeil State assist one 
another, till they rise as one man, and shake oil" the Union altogether? Kebellion is the only case 
in which the military loreo of the State can l>e properly exerted jigainst its citizens. In one point 
of view, he was struck with horror at the prospect of recurring to this expedient. To ptmish tho'^ 
non-payment of taxes with death was a severity not yet adopted by despotism itself; ytt this unex- 



ampIcJ cruelty would be mercy compared to a miiitary collection of revf-v>ue, in wliich the bayonet 
coulj make no discrimination between the ianocent and the guilty. He took this occasion to re- 
peat, that, uotwittislanding his solicitude to establish a national G-overnment, he never would agree 
to abolish the State governments, or render them absolutely insignificant. They were as necessary 
as the fteneral Government, and he would be equally careful to preserve them." — Jladison Papers 
— Debates in the Federal Convention, vol. 5, p. 21T. 

Mr. Ellsworth, upoa the same subject, said: 

"Hence we sec how necessary for the Union is a coercive principle. Xo man pretends the con- 
trary : we all see and feel this necessity. The only question is, shall it be a coercion of law, or a 
coercion of arms ? There is no other possible alsernati ve, Where will those who oppose a coercion 
of law come out? Where will they end? A necessary consequence of their principles is a war of 
the States one against the other. I am for coercion by law — that coercion v/hich acts only upon de- 
linquent individuals. This Constitution does not attempt to coerce sovereign bodies, 8tates,.In 
their political capacity. No coercion is applicable to such bodies; but that of an armed fores. If 
we should attempt to execute the laws of the Union by sending an armed force against a delinquent 
State, it would involve the good and bad, the Innocent and guilty, iu the same calamity." — Elliot's 
Debates, vol. 2, p. 197. 

Alexander Hamilton said: 

" It has been observed, to coerce the States is one of the maddest projects that was ever devised. 
A failure of compliance will never be contined to a single State. This being the case, can we sup- 
pose it wise to hazard a civil war ? Suppose Massachusetts, or any large State, should refuse, and 
Congress should attempt to compel them, would they not have influence to pmcure assistance, es- 
pecially from those States which are in the same situation as themselves? What picture does this 
idea present to our view ? A complying State at war with a non-complying State ; Congress march- 
ing the troops of ime State into the bosom of another; this State collecting auxiliariet, and forming, 
perhaps, a majority against its Federal head. Here is a nation at war with itself. Can any reason- 
able man be well disposed toward a Government which malces war and carnage the only means of 
supporting itself — a Government that_ can exist only by the sword? Every such war must involve 
the innScent with the guilty. This single consideration should be sulficient to dispose every peace- 
able citizen against such a Government." — Elliot's Debates, vol. 2, p. 233. 

But, sir, strong as these gentlemen were against giving the power to exert armed 
force against tlie States, some of the best and aVjlest members of the convention 
were in favor of giving Congress control over State action by a negative. Mr. 
Madison himself was stronglj' in favor of that ; and if that power had been granted, 
the first of the personal liberty bills that were passed would have been the last, for 
Congress would at once have annulled it, and the other States would have taken 
■warning by that example. Mr. Pinckney's proposition was brought up, that "the 
national Legislature should have authority to negative all lavv's whicji they should 
judge to be improper." He urged it strongly. Mr. Madison said : 

" A negative was the mildest expedient that could be devised for preventing these mischiefs. 
The existence of such a checic would prevent attempts to commit them. Should no such precau- 
tion be engrafted, the only remedy would be in an appeal to coercion. Was such a remedy eligible ? 
Was it practiLable ? Could the national resources, if exerted to the utmost, enforce a national de- 
cree against Massachusetts, abetted, perhaps, by several of her neighbors? It would not be possi- 
ble. A small proportion of the community, in a compact situation, acting on the defensive, and at 
one of its extremities, might at any time bid defiance to the national authority. Any government 
for the Uiiit-jKl States, fornaed on tlie supposed praclicalMlity of nsing force against the unconstitu- 
tional proceedings of the States, would prove as visionary and fallacious as the government of Con- 
gress. — Debates of Convention, Madison Pajyers, vol. 5, p. 171. 

That is, of the Congress of tile Confederation. Well, sir, Mr. Butler said to that, 
he was " vehement against the negative in the proposed extent as cutting off ail 
hope of equal justice to the distant States. The people there would not, he was 
sure, give it a bearing;" and on the vot^ Mr. Madison, aided by Mr. Pinckney, got 
but three States for it, and of these three States one was Virginia, and he got Vir- 
ginia onl}- by a vote of three totwo, General Washington in the chair not voting. 
The proposition, therefore, was directly put down, but it was not killed forever. 
On the I7th of July it was renewed, and Mr. Madison again urged the convention 
to give some power to the Federal Government over State action: 

"Mr. Madison considered the negative on the laws of the States as essential to the efficacy and 
security of the General Government. The necessity of a General Government proceeds from the 
iiropensity of the Slates to ])ur6ue their particular interests, in opposition to the general interest. 
This propensity will continue to disturb the system unless elTectually controlled. Nothing short of 
a negativo on their laws will control it. They will pass laws which will accomplish their injurious 
objects befoie they can be repealed by the General Legislature, or set asid#by the national tribu- 
nals." * * * " A power of negativing the improper laws of the States is at once the most mild 
and certain means of preserving the harmony of the system. Its utility is sufficiently displayed in 
the British system," &c. 

This was ao;ain negatived in July by the same vote. Finally, on the 23d of August, 
for the last time, an attempt was made to give that negative with a check upon it; 
and it was in these words : 



« Mr. Charles Pinckney moved to add, as an additional power to be vested in the Legislature of 

' ^' To ne'o-iuive ail laws passed by the several Slates, iaterfering, iu the opinion of the Legislature, 
with the general interests and harmony of the Union, provided that two-thirds of the members of 
each lIousL- assent to the same." 

Mr. Madison wanted it committed. Ih: Eutledge said: 

"If noihin" else, this alone would damn, and ought to damn, the Oonstitu ion. "Will any State 
ever a^ree to be bound hand and foot in this manner ? It is worse than making mere corporations 
of theui, whose by-laws would not be subject to this shackle." 

And thereupon Mr." Pinckney withdrew his proposition, and all control was aban- 
doned. There was then to be" no control on the part of the General Governmeat 
over State legislation, otherwise than in the action of the Federal judiciary upon 
such peeiiiiiarv controversies as might be properly brought before thtm. 

Notwithstanding all tiiis jealousy, when this Constitution came to be drscussed in 
the coaventions of the States, it met formidable opposition, upon the ground that 
the States were not sutficiently secure. Its advocates by every possible means en- 
deavored to quiet the alarms of the friends of State rights. Mr. Madison, in Vir- 
ginia, against Patrick Henry; iMr. Hamilton and Ciiief .Justice Jay, m New \ ork, 
against the opponents there; iu all the Slates, emiueut men used every exertion m 
their power to induce tlie adoption of the Constitution. They failed, until they 
proposed to accompany their tatitications with amendments that should prevent its 
meaning from being pei-verted, and prevent it fioin beii'g falsely construed j^and ia 
two of Ihe States especially- — the States of Virginia and iS'ew York — the ratification 
■was preceded by a statement of what their opinion of its true meaning was, and a 
statement that, on that construction, and under thi.t impression, they ratified it. 
Some of the members of the Convention were for asking for tiiese amendments in 
advance of ratification; but they were told it was unnecessary. In the Virginia 
convention, Mr. Randolph, who was General Washington's Attorney General, and 
Judge Nicholas,- both expressed the opinion that it wag not necessary, and that the 
ratification would be conditional upon that construction. Mr. jlandolph said: 

" If it be not.considered too early, as ratification has not yet been spoken of, I beg to speak of it . 
If I did believe, with the honorable gentleman, that all power not expressly retained was given up 
by the ocople, I would detest this Government. 

" But' I never thought so; m r do I now. I,f, in the ratification, we put words to this purpose, 
'And that all authority not given is retained by the p ople, and may be resumed v.hen perverted 
to their oppression: and that no right can be canceled, abridged, or restrained, by the Congress, or 
any officer of the United States'— 1 sav if we do this, I conceive thai, as this style of ratificalion 
would mauilVstthe principles on which Virgin\a adopted it, we should be at liberty to consider as a 
violation of the Constitution every exercise "of a pov/er not expressly delegated therein. I see no 
objection to this." 

And Mr. Nicholas said the same thing : 

" Mr. Nicholas contended that the language of the proposed ratification would secure everything 
which gtutlemen desired, as it declared that ail powers vested in the Constitution were derived 
from the people, and might be resumed by them whensoever they should be perverted to their in- 
jury and oppression ; ami that every power not granted thereby remained at their will. No danger 
whatever could arise; for (says he) these expressions will become a part at the contract. The 
Constitution cannot be binding on Virginia but with hese conditiors. If tiiirte'-n individuals are 
about to make a contract, and one agrees to it, but at the same time declares that he understands 
its meaning, signification, and intent to be (what the words of the contract plainly and obviously 
denote) that it is not to be construed so as to impose any supplementary condition on him, and 
that he is to be exonerated from it whensoever any such imposition shall be attempted, I ask 
whether, in this ca«o, these conditions on which he has assented to it would not be l)inding on the 
other twelve? In like manner tHese conditions will be binding on Congress. They can exercise 
no power that is not expressly granted them." 

So, sir, we find that not alone in these two conventions, but by the common ac- 
tion of the States, there was an important addition made to the Constitution by 
■which it was expresslj- provided that it should not be construed to be a general 
government over all the people, but that it was a Government of States, wliich 
delegated powers to the General Government. The language of the ninth and 
tenth amendments to the Constitution is susceptible of no other construction: 

- '• The enumeration ia the Constitution of certain rights shall not be construed to deny or dis- 
para5;e others retained by the people." 

'• Tlie powers not delegated lo the United States." 

Gentlemen are fond of using the words "surrendered," "abandoned," "given up." 
Tliat is the constant language on the other side. The language of the amendment 
intended to fix the meaning of the Constitution says, that these powers were not 



abandoned by the State, not surrendered, not given up, but "delegated," and there- 
fore subject to resumption : 

"The powers not delegated to the United States by the ConMitution. nor prohibited by it to the 
States, are reserved to tlie States respectively, or to the people." 

Now, Mr. President, if we admit, as we inuat, that there are certain political 
rights guarantied to the States of this Union by the terms of the Constitution it- 
self — rights political in tlieir cliaracter, and not susceptible of judicial decision — if 
any State is deprived of any of those rights, what is the remedy? for it is idle to 
talk to us at this day in a language which shall tell us we have rights and no reme- 
dies. For the purpose of illustrating the argument upon this subject, let us suppose 
a clear, palpable case of violation of the Constitution. Let us suppose that the 
State of South Carolina having sent two Senators to sit upo.n this floor, hud been 
met by a resolution of the majority here that, according to her just weigiit in the 
Confederac}'', one was enough, and that we had directed our Secretary to swear in 
but one, and to call but one name on our roll as the yeas and nays are called for 
voting. Tlie Constitution sa3-s that each State shall be entitled to two Senators, 
and each Senator shall have one vote. What power is there to force the dominant 
majority to repair that wrong? Any court? Any tribunal? Has the Constitution 
provided any reeoi7rs6 whatever? Has it not remained designedly silent on the sub- 
ject of that recourse 5 And yet, what man will stand up in this Senate and pretend 
that if, under these eireumstanees, the State of South Carolina had declared, " 1 en- 
tered into a Confederacy or a compact by which I was to have my rights guaranteed 
by the constant presence of two Senators upon your floor; you allow me but one ; 
you refuse to repair the injustice; I withdraw;" what man would dare say that 
that was a violation of the Constitution on the part of South Carolina ? Who would 
say that that was a revolutionary remedy? Who would deny the plain and palpa- 
ble proposition that it was the exercise of a right inherent in, her under the very 
principles of the Constitution, and necessarily so inherent for self-defence? 

Wh3', sir, the Xorth if it has not a majority here to-day will have it very soon. 
Suppose these gentlemen from the North with tlie majority think that it is no more 
than'fair, iuasraueU as we represent here States in which there are large numbers 
cf slaves, that the northern States should have each three Senators, what are we 
to do? They swear them in. Ko court has the power of prohibition, of manda- 
inus over this body in the exercise of its political powers. It is the exclusive judge 
of the elections, the qualifications, and the returns of its own members, a judge 
without appeal. Shall the whole fifteen southern States submit to that, and be toid 
that they are guilty of revolutionary excess if they say, we will not_ remain with 
you on these terms; we never agreed to -it? Is that revolution, or is it the exercise 
^of clear constitutional right? 

Suppose this violation occurs under circumstances where it does not appear so 
plain to you, but where it does appear equally plain to Soutii Carolina; then you 
are again brought back to the inevitable point, who is to decide? South Carolina 
says, you forced me to the expenditure of my treasure, you forced me to the shed- 
ding of the blood of ray people, by a majority vote, and with my aid you acquired 
territory ; now I have a constitutional right to go into that territory with my prop- 
erty, and to be there secured bv your laws against its loss. You say, no, she has 
not. Now, there is this to be said; that right'is not put down in thn Constitution 
in quite so clear terras as the right to have two Senators ; but it is a right which she 
asserts^ with the concurrent opinion of the entire South. It is a right which she 
asserts with the concurrent opinion of one-third or two fifths of your own people 
interested in refusing it. It is a riglit that she asserts, at all events, if not in aecoi d- 
ance with the decision — as you may say no decision was rendered — in accordance 
with the opinion expressed' bv the' Supreme Court of the United States; biit yet 
there is no tribunal for the assertion of that political right. Is she without a remedy 
Tinder the Constitution? If not, then what tribunal? If none is provided, then 
natural law and the law of nations tells you that she and she alone, from the very 
necessity of the case, must be the judge of the infraction and the mode and measure 
of redress. 

This is no novel doctrine ; but it is as old as the law of nations, coeval in our 
system with the foundation of the Constitution ; clearly announced over and over 
again in our political history. X very valued friend from New York did ine the 
favor to send me an extract,"^ which he has written out, from an address delivei_ed 
by John Quincy Adams before the New York Ilistorieal Society in 1839, at the ju- 
bilee of the Constitution, ilis language is this : 



9 

"Nations acknowledge no judge between them upon earth, and their Governments, from neces- 
sity, must, in their intercourse wiih each other, decide wlien the failure of one party to a contract 
to perform its obligations absolves tlie other from the reciprocal fulfillment of his own. But this 
last of earthlv powers is not necessary to the freedom or independence of States, conntcted to^'ether 
by the immediate action of tlie people, of whom they consist. To the people alone is there reserv- 
ed, as well tlie dissolvinsr as the constituent jjower, and that power can be exercised by them only 
under the tie of conscience, bindincc them to the retributive justice of heaven. 

"With these qualifications, we may admit the same right as vested in the people of every State 
in the Union, with reference to the General Government, which was exercised by the people of the 
United Colonies with reference to the supreme head of the British Empire, of which they formed 
a part; and, uu<ler these limitations, have the people of each State in the Union a right to secede 
from the confederated Union itself. 

" Thus stands the right. But the indissoluble litk of union between the people of the several 
States of this confederated nation is, after all, not in the i-i'.iht, but in the heart. If the day should 
ever come (inav Heaven avert it) wlien the affeclions of the people of these States shall be aliena- 
ted from each other ; when the fraternal spirit shall give way to cold indifference, or collisions of 
interest shall fester into liatred, tlie bands of political association will not lonir hold together parties 
no lotger attracted by the magnetism of conciliated interests and kindly sympathies ; and far bet- 
ter will it be for the people ol the disunited States to part in friendship from each otlier, than to be 
held together bv constraint. Then will be ihe time for reverting to the precedent^ which occurred 
at the formation and adoption of the Constitution, to form again a more perfect Inion, by dissolv- 
ing that which could no longer bind, and to leave the separated parts to be reunited by the law of 
political gravitation, to the center." 

I am compelled to refer alao for the purpose of completing my argument to the 
very familiar Virginia and Kentucky resolutions. They cannot, however, be too 
often repeated or held too reverently in memory. The first, drawn by Mr. Jefi'er- 
son, is: 

'■'Resolred, That the several States composing the United States of America are not united on the 
principle of unlimited submission to their General Government ; but that by compact, under the 
style and title of a Uonstitutioii for ihe United States, and of amendments thereto, they constituted 
a General Government for special purposes, delegated to that Government certain delinite powers, 
reserving each State to itself^he residuary mass of right to their own self-government; and that 
whensoever the General Govbrnment assumes undelegated powers, its acts are unauthoritative, 
void, and of no force ; that to this compact each State acceded as a State, anil is an integral party ; 
that this Government, created by this compact, was not made the exclusive or flual judge of the ex- 
tent of the powers delegated to itself, since that would have made its discretion, and not the Con- 
stitution, t!e measure of its power; hut that, o.s- in all other cas:es of oomj'Htct among parties 
Jid/vine/ no eomnwn judge, each parti/ has an equal right to judge for itself as icell of infractions 
as of the mode and measure of redress " 

These resolutions of Virginia were submitted to all the States. They were com- 
mented upon ; they were answered generall}' with contetnpt and disdain, because 
the people of the northern States never seem to have comprehended that the States 
had any ritjhfs at all. They have always gone astray in the heresy that this was 
one consolidated Oovernment, governing subjects to the Federal Government, and 
not controlling States, and individuals in the States. These resolutions were return- 
ed in many cases with terms of contempt and contumely. They were, therefore, 
referred to Mr. Madison for further consideration and defence, and he produced 
iipon that subject the best considered, the most perfect, the most comjiact argument 
upon the constitutional rights of the States of this Union, that has ever been deli- 
Tered. It has never been answered to this day in any of its positions. Ko man 
can answer it. The proof is such that conviction is forced home upon the mind as 
by the enunciation of an axiom. A single passage I desire to quote. It has been 
often quoted, but I must read it again : 

'•It appears to your committee to be a plain principle, founded in common sense, illustrated by 
common practice, and essential to the nature of compacts, that, where resort can be had to no tri- 
bunal superior to the authority of the ])arties, the piir,'i,'.i thems-elves must be the rightfifl judges, in 
the last report, lehether the bargain nt'ide has hten pursued or violated. The Constitution of the 
United States was formed by the sanction of the States, given by each in its sovereign capacity. It 
adds to the stability and dignity, as well as to the authority, of the Constitution, that it rests on this 
legitimate and solid foundation. The States, then, being the parties to the constitutional compact, 
and in their sovereign capacity, it follows, of fiecessity, that there can be no tril)unal, above their 
authority, to decide, iu the last resort, wiiether the compact made by them be violated, and conse- 
quently, that, as the parties to it. they must themselves decide, in the last resort, such, questions 
as may be of sufficient magnitude to rerjuire their interposition." 

He goes on to state, not limitations upon the poM'er, but considerations in regard 
to the mode of exercising it. He says : 

"The resolution has accordingly, guarded against any misapprchpneion of its object, bv express- 
ly requiring, for such an interposition, '*hc case of a deliberate, palpnble, and dangcrous"breach of 
the Constiiution, l^y the exercise of powers not granted by it.' It must be a case not of light and 
transient nature, but of a nature dangerous to the great purposes for which' the Constituiion was 
established." 

Mr. Madison, in the debates in the Virginia convention, seemed to take it for 
granted that any State had a right to secede at any time, without any condition or 



10 

I 

limitation. His later, well-considered report, qualifies that doctrine, as I have just 
shown ; but at the time the debates pceurred in the Yirgisiia convention about 
adopting the Constitution, it was taken for granted on all sides that Virginia could 
withdraw whenever she pleased ; nobody seems to have disjiiited that. After de- 
fending the grant of power in relation to the militia, Mr. Madison said : 

"An observation f'll from a gentleniitn on the same skle with myself, ^'hieh deserves to be at- 
tended to. If we be dissatisfied with the National Govurnment, if "we shoukl choose to rfnounce 
it, this is an additioual safeguard to our defence." — EUioVs iJehates, vol. 8, p. 414. 

Apparent!)- taking it for granted tliat any State could renounce it when it pleas- 
ed, and that the militia would already be organized as a safeguard for its defence. 
I do not state this as any particularly pertinent authority, but to show the impres- 
sions that generally prevailed at the" time of the adoption of the Constitution ; but 
when the question was subsequently discussed in 1798 and 1709, upon the alien 
and sedition laws, not only did Mr. Madison make this report, but I have a refer- 
ence here to a letter of Mr. Jefferson, which I have not on the table, and which I 
will anne.x to my speech when printed, showing that he delibeiatcly examined this 
whole question, and came to the same conclusion. 

But, Mr. President, the President of the United States tells us that he does not 
admit this right to be constitutional, that it is revolutionary. I have eiwieavored 
thus far to show that it results from the nature of the conijiact itself; that it must 
necessarily be one of those reserved powers which was not abfRidoned by it, and 
therefore grows out of the Constitution, and is not in violation of it. If 1 "am asked 
how 1 will distinguish this from revolutionary abuse, the answer is prompt aad 
easy. These States, parties to the compact, have a right to withdraw from it, by 
virtue of its own provisions, when those provisions ni"e violated by the other par- 
ties to the compact, vv-hcn either powers not granted are usurped, or rights are re- 
fused that are especially granted to the States. But, sir, t!iere is a large class of 
powers granted by this Constitution, in the exercise of which a discretion is vested 
in the General Government, and, in the exercise of that discretion, these admitted 
powers might be so perverted and abi:sed as to give cause of complaint, and, final- 
ly, to give the right to revolution ; for under tho?e circumstances there would be 
no other remedy. Kow, taking again the supposition of a dominant northern ma- 
jority in both branches, and of a sectional President and Vice President, the Con- 
gress of the United States then, in the exercise of its admitted powers, and the 
President to back them, could spend tlie entire revenue of the Confederation in that 
section which had control, without violating the words or the letter of the Consti- 
tutiioii ; they could establish forts, light-houses, arsenals, magazines, and all public 
buildings of every character in the northern States alone, and utterly refuse any to 
the South. The President, with the aid of his sectional Senate, «ould appoint" all 
ofncers of the Xavy and of the Army, all the civil officers of the Government, all 
the judges, attorneys, and marshals, all collectors and re^^enue officers, all postmas- 
ters — the whole host of public officers he might, under the forms and powers vested 
by the Constitution, appoint exclusively from the northern States, and quarter 
them in the southern States, to eat out the substance of our people, and assume an 
insulting superiority over them. All that might be done in the exercise of admitted 
constitutional power; and it is just that train of evils, of outrages, of wrongs, of 
oppressions long continued, that the Declaration of Independence saj-s a people pre- 
serves the inherent right of throwing off by destroj'ing their government by revo- 
tirtion. 

I say, therefore, that I distinguish the rights of the States under the Consti- 
tution into two classes: one resulting from the nature of their bargain; if the 
bargain is broken by tiie sister States, to consider themselves freed from it on the 
ground of breach of compact; if the bargain be not broken, but the powers be 
perverted to their wrong and their oppression, then, whenever that wrong and op- 
pression shall become sufficiently aggravated, the I'evolutionaiy right — the last in- 
herent right of man to preserve freedom, property, and safety — aiises, and must be 
exercised, for none other will meet the case. 

But, Mr. President, suppose South Carolina to be altogether wrong in her opinion 
that this compact has been violated to her prejudice, and that slie has, therefore, 
a right to withdraw; take that for granted — what then? You still have the same 
issue to meet, face, to face. You must permit hex to withdraw in peace, or j'ou 
must declare war. That is, you must coerce the State itself, or you must permit 
her to depart in peace. • There is nothing whatever that can render for an instant 
tenable the atteinpted distinction between coercing a State itself, and coercing all 
the individuals in the manner now proposed. Let me read a few lines upon that 



11 

fubject. First— Yattel, in speaking of State?, and of tlieir rights, ami the rights of 
their citizens, uses this langnage: 

" Kverv nation that governs itself, under what form soever, without dependence on any foreign 
rower, is a sovereign State: Its rights are nalurally the sairic as tliose of any otlier Slate. Such 
arc the mpral persons who live together in a natural society, subject to the law of nations. To give 
a nation a right to make an immediate figure in this grand society, it is sufficient that it be really 
sovereign and independent ; that is, tliat it govern itself by its own authority and laws." 

Then^.he speaks of those qualifications that may exist iu relation to this sove- 
reignty; and he says: 

" Several sovereign and independent States may unite themselves together by a perpetual con- 
federacy, without ceasing to be, each individually, a perfect State. They will together constitute a 
fedcralVepublie: their joint deliberations will not impair the soverei<rnty of caeli member, though 
they may, in certain respects, put some restraint on the exercise of it, in virtue of volunlary engage-.- 
meiits. A person does not cease to be free and independent when he is obliged to fulfill engage- 
ments which he has voluntarily contracted." — YatteOs Lmc i>f Nations^ book 1, chap. 1. 

Here, then, we see that, under the Law of nations, the State of South Carolina is 
a sovereitrn Slate, independently of all considerations drawn front the language of 
the Constitution itself, and as stich is entitled to be treated, and as such lias a right 
to protect and shield her citizens from all the consequences of obedience to her acts. 
The honorable Senato>froni Illinois (Mr. Tkumbvlt.) put to my friend from Virginia 
(Mr. Mason) the question what rebellion was, and put it with a triumjihant air, as 
if he supposed that in case of rebellion the laws of war did not apply; that then it 
was a mere question of hanging traitors; that there could be no independence of 
the State of South Carolijia, but a mere rebellion of the body of its citizens. Sup- 
pose it to be so, what does the law of nations say in that very ease? 

""When a party is formed in a State who no longer obey the sovereign, and are possessed of sufiB- 
eient strength to oppose him — or when, in a Republic, the nation is divided into two opj)Osite fac- 
tions, and both sides take np arms — this is called a civil rear. Some writers confine this term to a 
just insurrection of the subjects against their sovereign, to distinguish that lawful resistance from 
?•«?/(' //io», which is an open and unjust resistance. But what appellation will they give to a war 
which arises iu a Kepublic torn by two factions — or in a monarchy, between two competitors for 
the crown? Custom appropriates the term 'ci^il war' to every war between the members of one 
and the same political society. If it be between part of the citizens on the one side, and the sov- 
ereign, with those who continue in obe<lience to him, on the other, provided the malcontents have 
any reason for taking up arms nothing further is required to entitle such disturbance to the name 
of cirif ira)\ and not to that of rel/eUion. ■ This latter term is applied only to such an insurrection 
against lawful authority as is void of all appearance of justice. The sovereign, indeed, never fails 
to bestow the appellation of reheU on all such of his subjects as openly resist him ; but when the 
latter have .acquired sufficient strength to give him effectual opposition, and oblige him to carry on 
the war atrainst them according to the established rules, he must necessarily submit to the use of 
the term ■ civil war.' 

"It is foreign to our purpose in this place to weigh the reasons which may authorize and justify 
a civil war; we have elsewhere treated of the cases wherein subjects may resist tlie sovereign. 
(Book 1, chap, iv.) Setting, therefore, the justice of the cause wholly out of the question, it only 
remain's for us to consider the maxims which ought to be observed in a civil war, and to examine 
whether the sovereign in particular is, on such an occasion, bound to conform to the established 
rules of war. 

" A civil war breaks the bands of society or government, or at least suspends their force and ef- 
fect ; it produces in the nation two independent parties, who consider each other as enemies, and 
acknowledge no common judge. These two parties, therefore, must necessarily be considered as 
thenceforward consiitutiug, at least for a time, two separate bodies, two distinct societies." 

How does that square with this notion about coercing Individuals and not socle- 
ties? ■ ^ 

"Though one of the parties may have been to blame in breaking tlie unity of the State and re- 
sisting lawful authority, they are nut the less divided in fact. Besi.les, who shall judge them? 
"Who shall pronounce on which side the right or the wrony lies? On earth, they have no common 
superior. They ctand, therefore^ in 'precisely the name predicament as t'ico natums it'ho entjage 
in a contest, and, being unable to come to an agreement, have recourse to arms." — VatteVa Law 
of Katiooiii, book 3, chap. 18, p. 424. 

So much for the question of rebellion under the law of nations. Eut, sir, I wish 
to call the attention of gentlemen to an authority which, on the other side, is sel- 
dom disputed upon questions of constitutional and international law. I refer to 
Mr. AYebster. On the occasion of the disturbances on the Canada frontier, Alexan- 
der McLeod, a British subject, came across the line in time of profound peace, seized 
a steamboat called the Caroline, killed one of the men on board, moved it from its 
moorings, set lire to it, and it plunged over the Falls of Kiagar.a. Some years after- 
wards he was found in the State of New York, arrested, and brought to trial for 
the crime. The Government of Creat Britain communicated tp this Government 
that, as a Government, it assumed the responsibility, and therefore, under the law 



12 

of nations, required that the individual should be given up. Mr. Fox, in his lette r 
to Mr. Webster, said : 

" It would be contrarj' to the universal practice of civilized nations to fix individual responsi- 
bility upon persons who, with the sanction or by the orders of the conaiituted authorities of a State, 
ennrajred in militari- or naval enterprizes in their country's cause ; and it is obvious that the intro- 
duction of such a principle would aggravate beyond measure the miseries, and would frightfully 
increase the demoralizing effects of wars, by mixing up with national exasperation the ferocity of 
personal passions, and the cruelty and bitterness of individual revenge. 

"Her Majesty's Government cannot believe the Government of the United States can really in- 
ti-nd to set an example so fraught with evil to the community of nations, and the direct tendency 
of which must be to bring back into the practice of modern war atrocities which civilization and 
Chrisuanity have long since banished." — Works of Daniel Webster, vol. 6, p. ^8. 

To that, Mr. Webster made reply : 

• "The communication of the fact that the destruction of the Caroline was an act of public force 
by the British authorities, being formally made to the Government of the United States by Mr. 
Fox's note, the case assumes a decided aspect. 

'"The GoTernment of the United States entertains no doubt, that after this avowal of the trans- 
action as a public transaction, authorized and undertaken by the British authorities, individuals 
concerned in it ought not, by the principles of public law and the general usage of civilized States, 
to be holden personally responsible in the ordinary tribunals of law for their participation in it. 
And the President presumes that it can hardly be necessary to say that the American people, not 
distrustful of their ability to redress public wrong* by piil)lic means, cajinot desire the punishment 
of individuals when the act complained of is declared lo have been an act of the Government itself," 
Wor/CK of Daniel Webster, vol. C, p. 253. 

Instructions to this effect were accordingly sent to the Attorney General. But, 
Mr. Webster was stibsequently attacked in the Senate for his conduct in rela- 
tion to this negotiation ; and he delivered a very elaborate speech in defence of the 
treaty of Washington. This brings me to the point which I suggested to the hon- 
orable Senator from Wisconsin, when he told us the otlier day that each citizen 
owed allegiance to two sovereignties, and that he was bound at this peril to distin- 
guish between tlieir orders, that he could commit treason, under the Constitution, 
against the United States, and that the Constitution also recognizes that he could 
commit treason against the State, and yet the honorable Senator went so far as to 
say, tha;t if the State ordered him to do a thing, and the United States forbade him 
from doing it, both under the penalt}'^ of death, it was his misfortune to be placed in 
such a position tliat he might be hanged or executed by either, and under tlie law 
of nations, have no redress, no escape. I answer liim iu the language of Mr. VVeb- 
ster on that very subject : 

"In the next place, and on the other hand, General Harrison was of the opinion that the arrest 
and detention of McLeod were contrary to the law of nations. McLeod was a soldier, acting under 
tiie authority of his Government, and obeying orders which he was bound to obey. It was alisurd 
to say that a soldier, who must obey orders or be shot, may still be hanged if he does obey them.'' — 
Works of Daniel Webste)', vol. 5, page 123. 

I do not use the term " absurd ;" it is Mr. Webster who uses it. But perhaps gen- 
tlemen will say : Mr. Webster says that he was acting under the authority of his Gov- 
ernment, and obeying orders which he was bound to obey; but we deny that 
a citizen of South Carolina is bound to obey the orders of his Government. 
To that I reply, in the language of Vattel, that no citizen of any State has 
the right to question that; that it is a principle of the law of nations, that 
the citizen owes obedience to the command of his sovereign, and he cannot 
enter into the question whether the sovereign's order is lawful or unlawful, ex- 
cept at his pei-il. If his sovereign engages in war — if his State declares her indepen- 
dence — he is bound by the action of liis State, and lias no authority to control it. 
Whj', Mr. President, how idle and absurd would be any other proposition! How 
idle and absurd to suppose that you can, in principle and in practice, separate each 
particular individual of a State and make him responsible for the collective act of 
his Government — eacli agent in turn. The honorable Senator from Ohio, (Mr. 
I'uGii,) who delivered to us the other day so magnificent and patriotic an appeal, 
read you tlie language of the different Presidents of the United States upon that 
subject, and cited to you the language of Mr. Adams, in which he said that he had 
been forced to avoid making use of the power of the Federal Government, in the 
State of Georgia, against certain surv'eyors acting in defiance of the Federal author- 
ity, because lie understood that they were ordered so to act by their State govern- 
ment, and believed themselves bound to obey the order. 

Sii', if there was anything in this idea in theory, you might reduce it to practice ; 
but what can be more absurd, more vague, more fanciful, than the suggesti«ns put 
out by gentlemen here? You are going now, observe, to declare no war and to 



18 

coerce no State; you are simply going to execute the laws of the United States 
against individuals in the State of'South Carolina. That is your proposition. Is it 
serious? One gentleman says he will hang for treason. Ah, where is the marshal 
to seize, and where is the court to try, where is the district attorney to jiroseeute, 
and where is the jury to convict? Are you going to establi'^h all these by ayms ? 
Terhaps you tuU ine you will remove him elsewhere for trial. Kot so ; our fathers 
have notleft our liberties so unguarded and so unprotected as that. The Constitu- 
tion originally provided that no man could be brought to trial for an offence out 
of the State Where he committed it. The fathers were not satisfied with it, and 
they added an amendment that he should not be brought to trial out of the district 
even in which he had committed it. You cannot take him out of the district. You 
have got no judge, no mar-^hal, no attorney, no jurors, there ; and suppose you had : 
who is to adjudge, who is to convict? His feilow-citiz^ns, unanimous in opinion 
with him, determine that he has done his duty, and has committed no guilt. That 
is the way you are going to execute the laws against treason ! 

What next? Oh," no,"says the Senator from Ohio, (Mr. Wade,) this is what we 
will do; we will execute the laws to collect revenue by blockading your ports, and 
stopping them up. At first blush this seems a very amusing mode of collecting rev- 
enue in South Carolina, by allowing no vessels to come in on which revenue can be 
collected. It is the strangest of all possible fancies that that is the way of collect- 
ing revenue there, of enforcing the laws in the State against individuals. But 
first you are to have no war. And what is blockade? Does any man suppose that 
blockade can exist by a nation at peace with another ; that it is a peace power; that 
it can be exercised on any other ground than that you are at war with the party 
whose ports you blockade, and that you make proclamation to all the Governments 
of the eartli that their vessels shall not be authorized to enter into these ports, be- 
cause you are reducing your enem\- by the use of regular constituted, recognized, 
warlike means? Oh, but perhaps it is not a blockade that you will have ; j-ou will 
have an embargo, that is what you mean. We are guarded here again. The Con- 
stitution heads you off at every step in this Quixotic attempt to go into a S^ate to 
exercise your laws against her whole citizens without declaring war or coercing the 
State. You cannot embargo the ports of one State without embargoing all your 
ports ; you cannot shut up one without shutting up all ; the Constitution of the Uni- 
ted States expressly forbids it. If your blockade or your embargo were a peaceful 
measure, you are prohibited by the very Avords of the Constitution itself from forc- 
ing a vessel bound to or fsora one State to enter or clear or pay duties in another, 
or from making any regulations of commerce whatever, giving any preference to 
the ports of olc State over the ports of another; and you have no more right to 
blockade or close the ports of South Carolina by embargo, even by act of Congress, 
than j'ou have to declare that a sovereign State shall have no right to have more 
than one Senator on this floor. Your blockade is impracticable, unconstitutional, 
out of the power of the President. 

What is the idea of executing tht laws by armed force against individuals ? Gentle- 
men seem to suppose — and they argue upon the supposition — that it is possible, un- 
der the Constitution of the United States, for the President to determine when laws 
are not obeyed and to force obedience by the sword, without the interposition of 
courts of justice. Does any man have such an idle conceit as that? Does he sup- 
pose that, by any possible construction, the power of the Federal Congress to call 
out the militia, and to use the Army and the Navy to suppress insurrection and to 
execute the laws, means that the President is to do it of iiis own volition and with- 
out the intervention of the civil power? The honorable Senator from Tennessee, 
(Mr. Jouxsox,) the other da}-, called upon us to look at the example of Washington, 
who put down rebellion in Pennsylvania. lie said well that he was nolawj-er, when 
he cited that precedent. General Washington called forth the militia of Pennsyl- 
vania and of other States to aid in executing the laws onlj' upcn a reijuisition by 
a judge of the Supreme Court of the United States certifying to him that the mar- 
shal was unable to carry out the judgments of the court. 

Mr. JOIIXSOX, of Tennessee. I understood that very well. 

Mr. BEXJAMIX. Then what on earth do you mean by saying that you will go 
into a State and execute the laws of the United States against individuals, without 
a judge &r jury there, without a marshal or attorney, with nobody to declare the 
violation of law, or to order its execution before you attempt to enforce it? The 
Senator may not have intended to assume such a position. He has been unfortunate 
in the impressions that he has produced upon the country. 



14 

But, sir, other means are suggested. We cannot go to war; we are not going to 
•war; we are not goini; to coerce a State. "Why," saj's the Senator from Illinois, 
"who talks of coercing a State; you are attempting to breed confusion in tlie public 
mind; you are attempting to impose upon people by pervertinsj the question ; we 
only mean to execute the laws against individuals." Again, I say, where will be 
the civil process which must precede the action of the military foi-ce? Surely, surely 
it is not at this day that we are to argue that neither llie President, nor the President ' 
and Congress combined, are armed with the powers of a military despot to cari-y out 
the laws, witiiout the intervention of the courts, according to their own caprice and 
their own discretion, to judge when laws are violated, to convict for the violation, 
to pronounce sentence, and to execute it. You can do nothing of the kind with 3our 
military force. 

But it is suggested, and the President is weak enough to j'ield to the suggestion, 
that you will collect your revenue by furce — by the action of the power of the 
Federal Government on individuals. Has anybody fdlowed this out practically? 
Is it possible? 1 remember that Mr. Webster once, as a mere figure of rhetoric, in 
his debate on the Foot resolutions, used some such threat as this against this same 
State of South Carolina ; but it was looked upon as a mere beautiful figure of speech. 
Ko man ever paid any attention to it as really a threat of the use of constiturional 
power. You will put your collector on board of a vessel in the hai-bor. It shall be a 
man of-war ; it is in the port; and there you will make everybody pay duties before 
the goods are landed. That is the next proposition, that nobodj' sees any practical 
difficulty about. But, sir, it is totally impraciicable — totally impossible. Take a 
case. A citizen of New York owus a vessel which loads at Liverpool with a cai'go of 
assorted merchandise, part free, part owing duty, and consigns it to Charleston. He 
enters the harbor. Under the law he is obliged to make entry of his vessel,' to pro- 
duce his niaidlest, to go through certain oth-r formalities. He goes on board your 
ship-of-war, sees the collector, and complies with the orders. What next? There 
are no duties paid yet, and the inan wht. has a light to the free goods has no duties 
to pay. You cannot prevent him from going to the wharf and discharging them. 
There is no law to be executed there against an individual. But I will take it for 
granted that the whole «argo is a duty-paj'ing cargo, and all belongs to one man, 
who does not mean to pay your duties. You are no better oi¥f The man declines 
to enter his cargo. What is the law? The master of the vessel wants to go away. 
He is entitled by law to report to the collector that he is ready to deliver his caryo, 
that nobody is there to enter it, and that he demands that his cargo be discharged, 
and put in public store; and after that he maj- go upon his new voj-age; and you 
cannot change tliat, unless you change the law for all the ports of the United States. 
Or he may go further; the importer may go to the collector, and say, "I want to 
enter my cargo in warehouse;" and he gives a bond signed bj* himself and a solvent 
fellow-citizen, that they will pay the duty when he takes the goods out of the ware- 
house. Then you must let him put those goods into the custom-house warehouse; 
and you cannot change that law either, without changing it for the whole United 
States; because you cannot, under the Constitution, by any regulation of commerce, 
give any preference to the ports of one State over those of another. 

Mind you, you are at peace; jou are not coercing a State; j"ou are merely exe- 
cuting the laws against individuals. You cannot do it without breaking up your 
whole warehouse sj'stem ; you cannot do it without breaking up your whole com- 
mercial systesn iu every port of the Confederacj'. Your goods are ashore; they are 
in Government warehouses ; but you have r.ot got the duties. A rush upon tlie 
warehouse, and the goods are taken out. You have got a bond, but you have no 
court to sue it in ; and if you iiad, you would have no jury to forfeit i-, because the 
jury would be told by tlie court, or at all events by the lawyers in behalf of the 
defendant, that the Government had no right to collect that bond ; that it was a 
usurpation v/hich required him to give the bond. 

Tills whole scheme, this whole fancy, that vou can treat the act of a sovereign 
State, issued in an authoritative fu-m, and in her collective capacity as a State, as 
being utterly out of existence; that you can treat the State as still belonging col- 
lectively to t!ie Confederacj-, and that j-ou can proceed, without a solitary Federal 
officer in the State, to enforce your laws against private individuals, is as vain, as 
idle, and^delusive as an}- dream that ever entered into the head of man. The thing 
cannot be done, it is oul}- asserted for the purpose of covering up the true ques- 
tion, than which there is no other; you must acknowledge the independence of the 
seceding State, or reduce her to subjection by war. 



15 

Isovi-, Mr. President, I desire not to enter in any detail into the dreary catalogue 
of wro'uirs and outrages by which South Carolina defends the position that she 
has withdrawn from this Union because she has a constitutional right to do so, by 
reason of prior violations of the compact by her sister States. Before, however, 
making any statement— that statement to which we have been challenged, and 
whiciri shall make in but very few words — of tJ.e wroi-gs under which the South 
is now suffering, and for which she seeks redress, as the difficulty seems to arise 
chielly from a difFerenoe in our construction of the Constitution, I desire to read 
one ruore, and a last, citation from A'attel, giving a ride in relation to the construc- 
tion of treaties between sovereigns, and compacts between States. Among other 
things, he says: 

'•The rules that establish a lawful int rprctalion of treaties are suffioiently iraportant to be ma.le 
the sul)ifOt i)t" a distinct chaiiter. For tlu' present, let us simply observe that :iii evidently lalse m- 
terprttiitiou is the grossest iniaijinable violation ol" the faith of treaties. He that resorts to such an 
cxpudient, either ii'npudentiy sport^jivith that sacred faith, or suftieiently evinees his inward con- 
viotion of the d sree of mortal turpitude annexed to the violation of it ; he wishes to act a dishon- 
est part, and ve* preserve the character of an houest man; he is a puritanical iniposter, who asgra- 
Tates his criiiie by the addition of a detestable hypocrisy. Grotius quotes several instances of 
evidently false iuterpretations put upon treaties. The Plateans having pronns d the Thebans to 
restore their prisoners, restored tliem after they had put them to death. Pericles, haviug pron^- 
ised to spare the lives of such of the enemy as laid down their arms, ordered all those to be killed 
that had iron clasps to their cloaks. A Eoman arener.al having agreed with Anliochus to restore 
him half his fleet, caused each of the ships to be sawed in two AU these interpretations are as 
fraudulent as that of Ehadamistus, who, according to Taeitus's account, having sworn to Mithri- 
dates that he would not employ cither poison or steel against him, caused hm to be smothered 
under a heap of clothes." — Vatiel'.s Law of Ifatiom, book 2, chap. 15, p. 234. 

There is tlie text ; now the commentary. 

You, Senators of the Republican party, assert, and your peoi^le whom you repre- 
sent assert, that under a just and fair interpretation of the Federal Constitution it is 
right that you deny that our slaves, which directly and indirectly involve a value of 
more than four thousand million dollars, are property at all, or entitled to protec- 
tion in Territories owned by the common Government. 

You assume the interpretation that it is right to encourage, by all possible 
means, directly and indirectly, the robbery of tliis property, and to legislate so as 
to render its recovery as difficult and dangerous as possible; that it is right and 
proper and justifiable, under the Constitution, to prevent our mere transit across a 
sister State, to embark with our property on a lawful voyage, without being 
openly despoiled of it. 

You assert, and practice upon the assertion, that it is light to hold us up to the 
ban of mankind, in speech, writin>j, and print, with every .appliance of publicit}-, as 
thieves, robbers, murderers, villains, and criminals of the blackest d\-e, because we 
coiitiaue to own property which we owned at the time that we all signed the com- 
pact. ^ 

That it is right that we should be exposed to spend our treasure in the purchase, 
or shed our blood in the conquest, of foreign territory, with no right to enter it for 
- settlement without leaving behind our most valuable property, under penalty of 
its confiscation.- 

You practically interpret this instrument to be that it is eminently in accordance 
with the assurance that our tranquility and welfare were to be preserved and pro- 
moted, that our sister States should combine to prevent our growth and develop- 
ment; that tliey should surround us with a cordon of hostile communities, for the 
express and avowed purpose of accumulating in dense masses, and within restricted 
limits, a population which you believe to be dangerous, and theieby force the sacri- 
fice of property nearly suthcieiit in value to p.aj- the public debt of everj- nation in 
Euro|ie. 

This is the construction of the instrument that was to preserve our secutity, pro- 
mote our welfare, and which we only signei on your assurance that that was its 
object. You tell us that this is a fair construction — not all of you, some say one thing, 
some another; but you act, or your people do, upon this prin(;i[ile. You do not 
propose to enter into our States, you say, and what do we complain of? You do 
not pretend to enter into our States to kill or destroy our institutions by force. Oh, 
no. You imitate the faith of Rhadamistus: you propose simply to close us in an 
embrace tliat will sufTocate us. You do not propose to fell the tree ; you promised 
not. You merely propose to girdle it, that it die. And then, when we tell you 
that we do tiot understand this bargain this way, that your acting upon it in this 
spirit releases us fioni tiie obligations that j^ccotnpany it; that under no circumstan- 
ces can we consent to live together under that interpretation, and say: " we will go 



16 

from you ; let us go in peace;" -we are answered by your leading spokesmen : "OL, 
no; you cannot do that; we have no objection to it personally^ but we are bound 
by our oaths; if you attempt it, your people will be hanged foV treason. We have 
examined this Constitution thoroughly; we have searched it out with a fair spirit, 
and we can find warrant in it for releasing ourselves from the obligation of giving 
you any of its benefits, but our oaths force us to tax you ; we can dispense with 
everything else; but our consciences we protest upon our souls will be sorely wor- 
I'ied if we do not take your money." (Laughter.) That is the proposition of the 
honorable Senator from Ohio, in plain language. He can avoid everything else 
under the Constit\ition, that stands in the way of secession; but how is he to e;et rid 
of the duty of taking our money he cannot see. (Laughter.) 

Now, Senators, this picture is not placed before you with any idea that it vrill.act 
upon any one of you, or change your views, or alter your conduct. All hope of* that 
is gone. Our committee has reported this morning that no possible scheme of adjust- 
ment can be devised by them all combined. The day for the adjustment has passed. 
If you would give it now, j-ou are too late. 

And now, Senators, within a few weeks we part to meet as Senators in one com- 
mon council chamber of the nation no more forever. We desire, we beseech you, 
let this parting be in peace. I conjure you to indulge in no vain delusion that duty 
or conscience, interest or honor, imnoses upon you the necessity of invading our 
States or shedding the blood of our people. You have no possible justification for 
it. I trust it is in no craven spirit, and with no sacrifice of the honor or dignity of 
my own State, that I make this last appeal, but from far higher and liolier motives. 
If, however, it shall prove vain, if you are resolved to pervert the Government 
framed by the fathers for the protection of our rights into an instrument for subju- 
gating and enslaving us, then, appealing to the Supreme Judge of the universe for 
the rectitude of our intentions, we must meet the issue that you force upon us as best 
becomes freemen defending all that is dear to man. 

What may be the fate of this horrible contest, no man can tell, none pretend to 
foresee ; but this much I will saj- : the fortunes of war may be adverse to our arms ; 
you may carry desolation into our peaceful land, and with torch and fire you may 
set our cities in flames ; you may even emulate the atrocities of those who, in the 
war of the revolution, hounded on the blood-thirsty savage to attack upon the 
defenceless frontier ; you may, under the protection of your advancing armies, give 
shelter to the furious fanatics who desire, and profess to desire, nothing more than 
to add all the horrors of a servile insurrectien to the calamities of civil war; you 
may do all this — and more, too, if more there be — but you never can subjugate us; 
you never can convert the free sons of the soil into vassals, paying tribute to your 
power ; and you never, never can degrade them to the level of an inferior and ser- 
vile race. Keverl Never! 



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